Citation Nr: 0936699
Decision Date: 09/28/09 Archive Date: 10/09/09
DOCKET NO. 08-16 238 ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Salisbury,
North Carolina
THE ISSUE
Entitlement to reimbursement or payment by the Department of
Veterans Affairs (VA) of the cost of unauthorized medical
expenses provided at Forsyth Medical Center on September 8,
2007.
ATTORNEY FOR THE BOARD
L. A. Rein, Counsel
INTRODUCTION
The Veteran had verified active military service from
December 1974 to June 1995.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from decisions by the Department of
Veterans Affairs Medical Center (VAMC) in Salisbury, North
Carolina.
In an August 2008 letter, the Veteran indicated that he
would attend a videoconference hearing before a member of the
Board. Thereafter, in a 2009 RO report of contact, the
Veteran declined a hearing before the Board due to the
distance he would have to drive to the RO and requested that
his appeal be forwarded to the Board for a decision. Under
these circumstances, the Board finds that the Veteran has
effectively withdrawn his request for a hearing. 38 C.F.R. §
20.704(d) (2008).
FINDINGS OF FACT
1. The Veteran has been granted service connection for
adjustment disorder, evaluated as 50 percent disabling;
postoperative left shoulder dislocation, evaluated as 20
percent disabling; degenerative disc disease of the lumbar
spine, evaluated as 20 percent disabling; tinnitus, evaluated
as 10 percent disabling; chondromalacia, right knee with
degenerative joint disease, evaluated as 10 percent
disabling, and residual fracture, left fifth finger,
evaluated as noncompensable. A total disability rating on
the basis of individual unemployability (TDIU) has been in
effect from May 2005.
2. The Veteran was treated, in part for, a service-connected
disability at a private medical facility, Forsyth Medical
Center on September 8, 2007.
3. Treatment received from Forsyth Medical Center on
September 8, 2007, was for non-emergent conditions; hence it
is not shown to have been rendered for a medical emergency.
In addition, the Salisbury VA medical center was available
and such condition for which the Veteran received treatment
was not of such a nature that a prudent layperson would have
reasonably expected that delay in seeking immediate
medical attention would have been hazardous to life or
health.
CONCLUSION OF LAW
The criteria for payment or reimbursement of unauthorized
medical expenses incurred at Forsyth Medical Center on
September 8, 2007, have not been met. 38 U.S.C.A. § 1728
(West 2002); 38 C.F.R. § 17.120 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and
5126 (West 2002 & Supp. 2008) includes enhanced duties to
notify and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).
In connection with the claim herein decided, the claimant,
the Veteran and his representative have been notified of the
reasons for the denial of the claim, and have been afforded
the opportunity to present evidence and argument with respect
to the claim. The Board finds that these actions are
sufficient to satisfy any duties to notify and assist owed
the Veteran. As will be explained below, the claim lacks
legal merit. As the law, and not the facts, is dispositive
of the claim, the duties to notify and assist imposed by the
VCAA are not applicable. See Mason v. Principi, 16 Vet. App.
129, 132 (2002).
II. Analysis
The Veteran is claiming payment or reimbursement of medical
expenses incurred during treatment received at Forsyth
Medical Center on September 8, 2007
It is noted that service connection is currently in effect
for adjustment disorder, evaluated as 50 percent disabling;
postoperative left shoulder dislocation, evaluated as 20
percent disabling; degenerative disc disease of the lumbar
spine, evaluated as 20 percent disabling; tinnitus, evaluated
as 10 percent disabling; chondromalacia, right knee with
degenerative joint disease, evaluated as 10 percent
disabling, and residual fracture, left fifth finger,
evaluated as noncompensable. A TDIU has been in effect from
May 2005.
Medical evidence of record shows that the Veteran was seen at
Forsyth Medical Center on September 8, 2007, with a chief
complaint of vomiting and diarrhea that started two days
earlier. The illness has been described as moderate. It was
also noted that the Veteran had been out of his Xanax for
three days and that he bent over that morning and had back
pain which radiated to his flanks. A review of systems
revealed that the Veteran had had a subjective fever, muscle
aches, and back pain, chronically. Physical examination was
unremarkable. Chest X-rays were normal. The Veteran was
placed on a cardiac monitor. IV fluids, Morphine, and Zofran
were given to the Veteran. The clinical impression was back
pain. The Veteran was discharged home in stable condition.
The Veteran was instructed to follow up with his doctor at
the VA medical center that same week.
In order to receive payment or reimbursement for medical
expenses incurred at a non-VA facility, the Veteran must meet
the criteria set forth in one of two applicable regulations.
The first is 38 C.F.R. § 17.120. Under this regulation, to
establish eligibility for payment or reimbursement of medical
expenses incurred at a non-VA facility, a claimant must
satisfy three conditions. There must be a showing that:
(a) The care and services rendered were either: (1) for an
adjudicated service- connected disability; or (2) for a non-
service-connected disability associated with and held to be
aggravating an adjudicated service-connected disability; or
(3) for any disability of a Veteran who has a total
disability, permanent in nature, resulting from a service-
connected disability; or (4) for any injury, illness, or
dental condition in the case of a Veteran who is
participating in a rehabilitation program and who is
medically determined to be in need of hospital care or
medical services for reasons set forth in 38 C.F.R. §
17.48(j); and
(b) The services were rendered in a medical emergency of such
nature that delay would have been hazardous to life or
health; and
(c) No VA or other Federal facilities were feasibly available
and an attempt to use them beforehand or obtain prior VA
authorization for the services required would not have been
reasonable, sound, wise, or practicable, or treatment had
been or would have been refused. 38 U.S.C.A. § 1728 (West
2002); 38 C.F.R. § 17.120 (2008); see also Zimick v. West, 11
Vet. App. 45, 49 (1998).
As noted above, the Veteran was treated in part, for back
pain, which was not clearly identified as specific to his
service-connected lumbar spine; however, the Board will
accept that such was the case in this instance. Thus, the
questions before the Board are whether his treatment was for
a medical emergency and whether a VA facility was feasibly
available. If either of these conditions is not met, the
Veteran's claim must be denied.
The record reflects that the Veteran, by resolving all
reasonable doubt in his favor, does meet one of the
subcategories of section (a) above, in that the treatment
was, in part, for his service-connected lumbar spine
disability.
Even so, however, the evidence of record does not show that
the Veteran meets the criteria listed above in sections b and
c. The record does not show that the treatment on September
8, 2007 at Forsyth Medical Center was for a medical emergency
of such nature that delay would have been hazardous to life
or health. In fact the appellant had had the symptoms for 2
days before going to seek treatment. In fact, there is no
indication that the medical treatment the Veteran received on
September 8, 2007 was for a medical emergency. See Hennessey
v. Brown, 7 Vet. App. 143, 147 (1994) (defining a medical
emergency as a sudden, generally unexpected occurrence or set
of circumstances demanding immediate action). On the
contrary, the September 8, 2007 Forsyth Medical Center record
reflects that the Veteran arrived by private vehicle with
absolutely no indication that the Veteran's condition was
deemed emergent. Furthermore, in an October 2007 and a
December 2007 report, VA health care professionals opined
that emergent treatment was not required and that VA
facilities at the Salisbury VAMC were available. Thus, based
on the foregoing, the Veteran is not eligible for medical
expense reimbursement under 38 U.S.C.A. § 1728.
It is noted that the VAMC did not consider this claim under
the Veterans Millennium Healthcare and Benefits Act, 38
U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000- 17.1008. These
provisions provide for reimbursement in some situations.
Since the VAMC did not consider it in the first instance the
Board will not. It is noted, however, that these provisions
also require, in part, emergent treatment and unavailability
of a VA facility. Id.
ORDER
Entitlement to reimbursement or payment by VA of the cost of
unauthorized medical expenses provided at Forsyth Medical
Center on September 8, 2007, is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs